Will it Soon be Malpractice Not to be Social Media Savvy?

By William Peacock, Esq. on
May 17, 2013 8:59 AM

When I was a wee lad, I worked at a firm that was handling a child custody dispute. As with most custody situations, the signs were pointing towards some sort of a joint arrangement, which was unfortunate, because the opposing party was not exactly fit for parenthood.

With only a short time left until the hearing, the entire case took a turn in our client's favor due to an ounce of luck, a pound of stupidity, and a digital camera. The opposing party had borrowed the camera while taking the child for the weekend. When he returned the child, and the camera, he forgot to delete the images, and our client, fortuitously, found the smoking gun.

Or smoking something, at least. And it wasn't tobacco or marijuana.

Those were the days when you had to connect the camera to the computer, download the images, and then, gasp, print them. Today, your phone uploads nearly everything to Facebook, Instagram, or a non-social repository, like iCloud or Picassa.

Last month, the Cleveland Plain Dealer did a feature on how social media is changing the law, including a similar family law case where an ex-spouse found out about a new marriage via Facebook photos. Other cases where it often plays a factor are workers’ compensation, trademark infringement, and defamation.

Obviously, as an advocate, your job is to counsel your client on the best legal strategies for their case. Some of this advice will be of the “don’t lose your case by acting like an idiot, in the real world or online” variety. Lawyers are also often tasked with investigating the other side, such as when a skip trace is performed to locate assets.

What if the most valuable evidence you could possibly locate lies in social media? Are you doing your client a disservice by not understanding the intricacies of tweeting, the snapshot streams of Instagram, or the persons pining to pin posts on Pinterest? The beauty, and danger of social media is that users are disinhibited about over-sharing. Instagram now, get arrested for identity theft later, right?

We’re almost certainly not at the point where the standard of care involves social media savvy, but if you want to do the absolute best by your client, you might want to start looking into the various services, or at least consider adding a Tweeting, Instagramming, status-updating, Flipboard-flipping and blogging guru to your support staff.